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Colonial Cases

R. v. Parker, 1888

[shipping, employment

R. v. Parker

Police Court, Shanghai
Hall AAJ, 24 August 1888
Source: North China Herald, 1 September 1888

Shanghai, 24th Aug., 1888
Before J. C. Hall, Esq., Acting Assistant Judge.
  Captain JAME H. PARKER, Master of the British ship Tamar E. Marshall, Capt. T. C. Carning, Master of the Monrovia, and Capt. A. P. Owen, Master of the Highlands, appeared to answer three summonses charging them with breach of Sec. 160, of the Merchant Shipping Act of 1854.
  Mr. Geo. Brown, H.M.'s Vice-Consul, prosecuted.
The summons against Capt. Parker, which only was gone into, was that he on or about the 24th April last contrary to Sec. 160 of the Merchant Shipping Act of 1854, did engage and carry to sea from New York three seamen, named E. A. Mannfold, Anton Carlson and Frank Becdur, without first obtaining the sanction of the British Consular Officer.
  The defendant in reply to his Worship admitted that he had shipped the men in the manner alleged in the summons, but pleaded that he had done so in ignorance of the fact that it was illegal.  He had shipped men in the same way in different ports for many years, without his action being questioned.
.  .  .  
  His Worship said the case as an important one and as he did not agree with the prosecutor's view of the law he would like to have a higher legal opinion upon it.  He would fine the defendant 10 Pounds for an infraction of the law in not complying with Sections 160 and 150 of the Merchant Shipping Act, and he was at liberty to have a case stated on the subject if he was dissatisfied.
  Mr. Brown said that he did not prosecute the defendant for not having signed the substitutes on board, but for having shipped them at all.
  His Worship - I hold that he did not comply with Section 150, which is incorporated into Section 160.
  Mr. Brown said he did not wish to prosecute for that, but for not having signed the men before a Consular officer.
  His Worship said he found the defendant guilty of not having read over the agreement to the men and signed them in accordance with Section 150.  He then asked Mr. Brown was there not another similar case.
  Mr. Brown said he wished to withdraw the other cases.  He did not wish to prosecute them under Section 150.  His charge was exactly as it was worded in the summons, under Section 160.
  His Worship then gave his assent to the withdrawal of the other cases.

Source: North China Herald, 7 September 1888

Shanghai, 6th Sept., 1888
Before R. A. Mowat, Esq., Actin Chief Justice.
  The special case stated in this case in which Capt. J. H. Parker of the British ship Tamar E. Marshall was fined 10 Pounds for contravention of Secs. 150 and 160 of the Merchant Shipping Act, by Mr. J. C. Hall, Acting Assistant Judge, on the 24th ultimo, came on for hearing this morning.
  Mr. Geo. Brown appeared for the prosecution; the Captain did not attend, and in reply to his Lordship, Mr. Brown stated that he had gone to sea again.
  His Lordship said he would hear anything Mr. Brown had to say in support of the conviction, or upon any other point.
  Mr. Brown said he had nothing more to say in the case, but if he was allowed he would plead for mitigation of the penalty.  He took some blame to himself for not having made that a more prominent point at the first hearing, but as the learned Magistrate's decision was against him, on the point of law, he did not think there would be a conviction, and therefore that he would only be taking up the time of the court in pleading a mitigation of the penalty, which might not be inflicted.  He thought that the captain had done everything he could in the matter, and it was an unwitting breach of the law.  The men made no complaint whatever to him (Mr. Brown) and they had been well treated on board and the Captain was a straightforward man.  
  The previous similar case in which the Captain was convicted on March last, that of the Alexander Yeates, was a rather aggravated case, and there the penalty was 2 Pounds in each case.  In that case the men were shipped, and did not know where they were going.  In this case the men knew where they were going and did not make any complaint, and here the penalty was 10 Pounds for the three cases. In another case, that of the Minister of Marine, the penalty was 10 Pounds for each of the three cases.
  His Lordship in giving his decision, said:- This is a special case stated under Sec. 121 of the Order in Council of 1865; and I should say that if the section were to be construed for the first time now, I should hold that it does no apply except to  special cases stated by Provincial Courts.  The language of the section, and its place in that particular subdivision of the Order in Council, point I think conclusively to previous cases in which special cases have been stated by the Magistrate in the Supreme Court for the opinion of the Chief Justice, one as far back as 1869, and the other in 1874 - both stated, as I happens, by myself - and they were received without any objection being made.
  Following these precedents I will proceed to deal with the case.  The charge against the defendant was brought under Section 160 of the Merchant Shipping Act of 1854, and the offence was that of engaging and carrying to sea from New York three seamen without first obtaining the sanction of the British Consular officer.  The charge was properly brought under that section, it was under that section alone that the offence with which he was charged could have been brought, and upon the evidence as set out in the special case, I think it was perfectly clear that he must be convicted.
  It would appear that the prosecutor and the learned Magistrate took a different view of the law which would have been applicable to a case where the captain had the agreement read over to the substitutes and signed by hem.  In the learned Magistrate's view of the law, had these facts been proved, I imagine that he would not have convicted him; but as they were not proved, he convicted him.  
  Now the Captain having done nothing to bring himself with Sec. 150 - if that would have been any assistance to him, upon which I do not express any opinion - I hold that the conviction is unquestionably and perfectly correct.  I am not at liberty in dealing with a special case, to suppose a case which is different from the one in question, and give a decision upon a hypothetical case.  If I did, it would be open to the objection that my decision was not binding in any such subsequent case.  It would be obiter dictum, and would not bind myself to any or afterwards.  It would therefore not be proper for me to express any opinion as to which of the two views of the law in the Magistrate's court was the right one. The facts of the case sustain the conviction, whether the Magistrate's or the prosecutor's view was the right one, and I can do nothing but affirm the conviction.
  I am very glad, however, to have the opportunity of reviewing the amount of the penalty imposed, after what Mr. Brown has stated, and which I think accords with the view of the learned Magistrate himself.  I understand from the magistrate that his motive for imposing the heavy penalty he did, was to induce the accused to apply for a special case, whereby the point in difference in the case which I have referred to, might be decided; and therefore the learned Magistrate and Mr. Brown, the prosecutor, are at one as to the propriety of reducing the penalty.   I accordingly do so and fix it at ten dollars.  The conviction will therefore be affirmed, but the penalty will be reduced to $10.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School